BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140009198 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to honorable.

2.  The applicant states he did not voluntarily use marijuana.  Due to the circumstances at the time of the alleged incident, in which he was unfortunately subjected to a hostile environment, he tested positive for marijuana.  He received his discharge in 1986 and he has been a model citizen with no criminal history.  He is a student and president of the criminal justice club with a 3.03 grade point average; he only needs 4 credit hours to complete his degree.  He has worked for the government on occasion and he deserves an upgrade of his discharge.

3.  The applicant provides a one-page unofficial student transcript from the Erie Community College-South Registrar's Office.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 19 January 1983.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).

3.  On 28 April 1986, while stationed at Schofield Barracks, HI, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using some amount of marijuana on or about          4 April 1986.

4.  On 30 April 1986, he was counseled that his commander was taking action to discharge him based on his positive test result for marijuana as detected by urinalysis sweep on 4 April 1986.

5.  On 2 May 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct, abuse of illegal drugs.

6.  On 2 May 1986, he acknowledged receipt of the commander's notification.  On 5 May 1986, he consulted with counsel, was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He elected not to submit a statement in his own behalf.

7.  His intermediate commander recommended approval of the discharge action and personally interviewed him with regard to the separation action.

8.  On 5 May 1986, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed the issuance of a General Discharge Certificate.

9.  On 23 May 1986, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense, with an under honorable conditions discharge.  He completed 3 years, 4 months, and     5 days of net active service this period with no time lost.

10.  There is no evidence in his personnel service record and he provides insufficient evidence to support his contention that he was involved in or subject to a hostile environment.

11.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.  He offers his post-service conduct and achievements as evidence; however, post-service conduct and achievements alone are not normally a sufficient basis for upgrading a discharge.

2.  In addition, there is no evidence in his personnel service record and he provides insufficient evidence to support his contention that he was involved in or subject to a hostile environment.

3.  The evidence of record shows that while serving at Schofield Barracks, HI, he committed a serious offense by unlawfully using illegal drugs as evidenced by his positive urinalysis for marijuana.  Accordingly, his commander initiated separation action against him.  He was advised of his rights, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service does not merit an upgrade to his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140009198





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ABCMR Record of Proceedings (cont)                                         AR20140009198



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